SB0101 Engrossed LRB094 04164 DRJ 36053 b

1     AN ACT to create the Assistive Technology Protection Act.
 
2     Be it enacted by the People of the State of Illinois,
3 represented in the General Assembly:
 
4     Section 1. Short title. This Act may be cited as the
5 Assistive Technology Warranty Act.
 
6     Section 5. Definitions. In this Act:
7     "Assistive technology device" means any item, piece of
8 equipment, or product system, whether acquired commercially,
9 modified, or customized, that is purchased or leased, or whose
10 transfer is accepted in this State, and that is used to
11 increase, maintain, or improve functional capabilities of
12 individuals with disabilities. "Assistive technology device"
13 does not mean any medical device, surgical device, or organ
14 implanted or transplanted into or attached directly to an
15 individual. "Assistive technology device" also does not
16 include any device for which a certificate of title is issued
17 by the Secretary of State, Division of Motor Vehicles, but does
18 mean any item, piece of equipment, or product system otherwise
19 meeting the definition of "assistive technology device" that is
20 incorporated, attached, or included as a modification in or to
21 such certificated device.
22     "Assistive technology device dealer" means a person who is
23 in the business of selling assistive technology devices.
24     "Assistive technology device lessor" means a person who
25 leases assistive technology devices to consumers, or who holds
26 the lessor's rights, under a written lease.
27     "Collateral cost" means expenses incurred by a consumer in
28 connection with the repair of a nonconformity, including the
29 cost of shipping, sales tax, and the cost of obtaining an
30 alternative assistive technology device.
31     "Consumer" means any one of the following:
32         (1) A purchaser of an assistive technology device, if

 

 

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1     the assistive technology device was purchased from an
2     assistive technology device dealer or manufacturer for
3     purposes other than resale.
4         (2) A person to whom an assistive technology device is
5     transferred for purposes other than resale, if the transfer
6     occurs before the expiration of an express warranty
7     applicable to the assistive technology device.
8         (3) A person who may enforce a warranty applicable to
9     an assistive technology device.
10         (4) A person who leases an assistive technology device
11     from an assistive technology device lessor under a written
12     lease.
13     "Consumer" does not include a person who acquires an
14 assistive technology device at no charge through a donation, or
15 a public school district or special education joint agreement
16 established under the Illinois School Code that purchases or
17 leases an assistive technology device for the use of a student
18 with a disability for the purpose of implementing the
19 Individualized Educational Plan of the student.
20     "Demonstrator" means an assistive technology device used
21 primarily for the purpose of demonstration to the public.
22     "Early termination cost" means any expense or obligation
23 that an assistive technology device lessor incurs as a result
24 of both the termination of a written lease before the
25 termination date set forth in the lease and the return of an
26 assistive technology device to the manufacturer, including a
27 penalty for prepayment under a financing arrangement.
28     "Early termination savings" means any expense or
29 obligation that an assistive technology device lessor avoids as
30 a result of both the termination date set forth in the lease
31 and the return of an assistive technology device to a
32 manufacturer, including an interest charge that the assistive
33 technology device lessor would have paid to finance the
34 assistive technology device or, if the assistive technology
35 device lessor does not finance the assistive technology device,
36 the difference between the total payments remaining for the

 

 

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1 period of the lease term remaining after the early termination
2 and the present value of those remaining payments at the date
3 of the early termination.
4     "Loaner" means an assistive technology device provided
5 free of charge to a consumer, for use by the consumer, that
6 need not be new or identical to, or have functional
7 capabilities equal to or greater than, those of the original
8 assistive technology device, but that meets all of the
9 following conditions:
10         (1) It is in good working order.
11         (2) It performs, at a minimum, the most essential
12     functions of the original assistive technology device in
13     light of the disabilities of the consumer.
14         (3) There is no threat to the health or safety of the
15     consumer due to any differences between the loaner and the
16     original assistive technology device.
17     "Manufacturer" means a person who manufactures or
18 assembles assistive technology devices and (i) any agent of
19 that person, including an importer, distributor, factory
20 branch, or distributor branch, and (ii) any warrantor of an
21 assistive technology device. The term does not include an
22 assistive technology device dealer or assistive technology
23 device lessor.
24     "Nonconformity" means any defect, malfunction, or
25 condition that substantially impairs the use, value, or safety
26 of an assistive technology device or any of its component
27 parts, but does not include a condition, defect, or malfunction
28 that is the result of abuse, neglect, or unauthorized
29 modification or alteration of the assistive technology device
30 by the consumer.
31     "Reasonable attempt to repair" means any of the following
32 occurring within the term of an express warranty applicable to
33 a new assistive technology device or within one year after the
34 first delivery of the assistive technology device to a
35 consumer, whichever is sooner:
36         (1) The manufacturer, the assistive technology device

 

 

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1     lessor, or any of the manufacturer's authorized assistive
2     technology device dealers accept return of the new
3     assistive technology device for repair at least 2 times.
4         (2) The manufacturer, the assistive technology device
5     lessor, or any of the manufacturer's authorized assistive
6     technology device dealers place the assistive technology
7     device out of service for an aggregate of at least 30
8     cumulative days because of nonconformities covered by a
9     warranty that applies to the device.
 
10     Section 10. Express warranty. A manufacturer or assistive
11 technology device lessor who sells or leases an assistive
12 technology device to a consumer, either directly or through an
13 assistive technology device dealer, must furnish the consumer
14 with an express warranty for the assistive technology device
15 warranting that the device is free of any nonconformity. The
16 duration of the express warranty must be not less than one year
17 after the date of the initial delivery of the assistive
18 technology device to the consumer. If the manufacturer fails to
19 furnish an express warranty as required by this Section, the
20 manufacturer shall be deemed to have warranted to the consumer
21 of an assistive technology device that, for a period of one
22 year after the date of the initial delivery to the consumer,
23 the assistive technology device will be free from any condition
24 or defect that substantially impairs the value of the assistive
25 technology device to the consumer. The express warranty takes
26 effect on the date the consumer initially takes possession of
27 the new assistive technology device.
 
28     Section 15. Assistive technology device replacement or
29 refund.
30     (a) If a new assistive technology device does not conform
31 to an applicable express warranty and the consumer (i) reports
32 the nonconformity to the manufacturer, the assistive
33 technology device lessor, or any of the manufacturer's
34 authorized assistive technology device dealers and (ii) makes

 

 

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1 the assistive technology device available for repair before one
2 year after the first delivery of the device to the consumer or
3 within the period of the express warranty if the express
4 warranty is longer than one year, then a reasonable attempt to
5 repair the nonconformity must be made at no charge to the
6 consumer.
7     (b) If, after a reasonable attempt to repair, the
8 nonconformity is not repaired, the manufacturer must carry out
9 the requirements of either item (1) or item (2) of this
10 subsection at the option of the consumer:
11         (1) The manufacturer shall provide a refund to the
12     consumer within 30 days after the request by the consumer.
13     If the consumer chooses this option, he or she shall return
14     the device having a nonconformity to the manufacturer or
15     lessor along with any endorsements necessary to transfer
16     legal possession to the manufacturer or lessor.
17          If the assistive technology device was purchased by
18     the consumer, the manufacturer shall accept return of the
19     assistive technology device and refund to the consumer, and
20     to any holder of a perfected security interest in the
21     assistive technology device as the holder's interest may
22     appear, the full purchase price plus any finance charge
23     paid by the consumer at the point of sale and collateral
24     costs, less a reasonable allowance for use.
25          If the assistive technology device was leased by the
26     consumer, the manufacturer shall accept return of the
27     device, refund to the assistive technology lessor and to
28     any holder of a perfected security interest in the device,
29     as the holder's interest may appear, the current value of
30     the written lease, and refund to the consumer the amount
31     that the consumer paid under the written lease plus any
32     collateral costs, less a reasonable allowance for use. The
33     manufacturer shall have a cause of action against the
34     dealer or lessor for reimbursement of any amount that the
35     manufacturer pays to a consumer which exceeds the net price
36     received by the manufacturer for the assistive technology

 

 

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1     device.
2         (2) The manufacturer shall provide a comparable new
3     assistive technology device. The consumer shall offer to
4     transfer possession of the device having a nonconformity to
5     the manufacturer. No later than 30 days after that offer,
6     the manufacturer shall provide the consumer with the
7     comparable new assistive device. Upon receipt of the
8     comparable new assistive device, the consumer shall return
9     the device having the nonconformity to the manufacturer,
10     along with any endorsements necessary to transfer legal
11     possession to the manufacturer.
12     (c) For purposes of this Section, "current value of the
13 written lease" means the total amount for which that lease
14 obligates the consumer during the period of the lease remaining
15 after its early termination, plus the assistive device lessor's
16 early termination costs and the value of the assistive device
17 at the lease expiration date if the lease sets forth that
18 value, less the assistive device lessor's early termination
19 savings.
20     (d) For purposes of this Section, a "reasonable allowance
21 for use" may not exceed the amount obtained by multiplying the
22 total amount for which the written lease obligates the consumer
23 by a fraction, the denominator of which is 1,825 and the
24 numerator of which is the number of days that the consumer used
25 the assistive device before first reporting the nonconformity
26 to the manufacturer, assistive device lessor, or assistive
27 device dealer.
 
28     Section 20. Prohibition on enforcement of lease. A person
29 may not enforce an assistive technology device lease against a
30 consumer after the consumer receives a refund under Section 15.
 
31     Section 25. Restriction on resale or lease; full
32 disclosure. An assistive technology device returned by a
33 consumer or assistive technology device lessor in this State,
34 or by a consumer or assistive technology device lessor in

 

 

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1 another state under a similar law of that state, may not be
2 sold or leased again in this State unless full disclosure of
3 the reasons for the return is made to any prospective buyer or
4 lessee of the device.
 
5     Section 30. Waiver of rights void. Any waiver by a consumer
6 of his or her rights under this Act is void.
 
7     Section 35. Civil remedies. In addition to pursuing any
8 other remedy, a consumer may bring an action to recover any
9 damages caused by a violation of this Act. The court shall
10 award a consumer who prevails in such an action no more than
11 twice the amount of any pecuniary loss, costs, disbursements,
12 and reasonable attorney's fees, and any equitable relief that
13 the court deems appropriate.